Can a House be Sold during Probate?
The short answer is yes, it is possible to sell a house during probate proceedings in Illinois. However, the personal representative appointed by the court needs to follow all local ordinances and meet any state requirements for selling property in probate.
The probate process in Illinois can vary from case to case, depending on whether or not there was a will, and how clearly the will defines the assets and beneficiaries. Generally, the executor of the will is appointed by the court to manage and distribute the assets according to the decedent’s wishes. If there is no will, then the court appoints an administrator to carry out those duties.
One common question that arises during probate is whether or not it is possible to sell a house while proceedings are ongoing.
What is Probate?
Probate is the legal process through which a decedent’s assets are transferred after their death. The court appoints a personal representative to carry out the wishes of the decedent. The question of whether or not probate can be waived in Illinois depends on if one chooses to have their property distributed through the Will, or designated as intestate property—meaning without a Will.
Who Can File for Probate?
A probate proceeding can only take place with proper authorization from an Illinois court of law. In order to file for probate, you would need to be an interested party in the estate, such as a relative of the deceased or the executor of the will.
When is Probate Not Necessary?
If a person dies with a valid will and all assets are transferred through designated beneficiaries, then probate may not be necessary. In this situation, the personal representative would simply need to present the will and other relevant documentation to a notary public, who would sign off on it. For example, life insurance proceeds paid to a beneficiary other than the estate itself are not subject to the probate process.
Are There Exceptions?
There are some exceptions where probate proceedings may be necessary even if there is no Will or all assets have been distributed accurately via beneficiary designations. For example, if the property was transferred into joint tenancy with someone other than the deceased’s spouse, probate would likely be required in order to transfer the property to the rightful heir.
Will vs. No Will
If the decedent had a valid Will, then probate can be waived if all of the following are true: The beneficiaries named in the Will agree to waive probate; there is no litigation pending or threatened; and all estate taxes, debts, and funeral expenses have been paid. If any of these items are not met, then probate will be necessary. If there are assets that are included in the will, they cannot be distributed until after proceedings have been completed. This means that if a home was left to someone, for example, they would need to wait until all other assets were distributed to them before selling the house.
If the decedent did not have a Will, or if their Will does not dispose of all of their property, then intestate succession laws will come into effect and probate will be required. In this case, the court appoints an administrator to manage the estate and distribute the assets according to the laws. It depends on how an asset was titled in order to determine if it can be sold during probate proceedings. If a home was left solely to one person and they are also the owner of that property’s title, for example, they may sell at any time because that person has full control of the asset. If there are multiple owners, however, then they would need to get approval from the court in order to sell.
The barriers to selling a house during probate in Illinois usually come down to the fact that there is usually a lack of authority for the executor or administrator to make decisions about the sale. The court will need to approve any asset sales, which can add time and complexity to the process.
The probate process can take anywhere from 8 months to a year, and you will need to file regular updates with the court. It is best to allow experts to handle this complex process, as there are many potential pitfalls that can occur.
If you would like more information on the probate process in Illinois, please contact me for a no obligation consultation. I would be happy to discuss your specific situation and help you navigate these difficult waters.
My name is Maria Mastrolonardo, I am a Illinois Certified Probate Real Estate Specialist with RE/MAX Enterprises. This is ALL I do; I help guide families through the process of selling real estate in probate and I would be happy to help you as well.
Call me today at: (630) 248-6077, or email me at mmastrolonardo@remax.net